• Attorneys (1)
• Construction Law (1)
• Contracts (3)
• Criminal Law (5)
• Employment & Labor Law (1)
• Family Law (1)
• Insurance (1)
• Litigation (2)
• Malpractice (1)
• Real Property (3)
• Tax (1)
• Workers' Compensation (1)

Attorneys

 

This summary also appears under Contracts

 

Issues: Whether the defendants were "prevailing parties" entitled to attorney fees under ¶ 18 of the lease agreement; Miranda & Assoc., Inc. v. Abro (Unpub.); Reed v. Reed; Kloian v. Domino's Pizza, LLC; Flint Cold Storage v. Department of Treasury; Holland v. Trinity Health Care Corp.; New Prop., Inc. v. George D Newpower, Jr., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Miranda & Assocs., Inc. v. Abro

e-Journal Number: 50238

Judge(s): Per Curiam – M.J. Kelly, Saad, and O’Connell

 

Based on the law of the case doctrine, the court held that the trial court properly determined that defendants were not prevailing parties entitled to attorney fees under ¶ 18 of the lease agreement, and affirmed the trial court's order denying defendants' motion for attorney fees. Plaintiffs and defendants entered into agreements for the sale of a business and the lease of the property on which the business was located. The lease contained an option to purchase the property for $400,000, with payment of $120,000 down and a land contract for the balance, which was to be paid in 120 monthly installments at 9% interest. Plaintiffs gave defendants notice that they were exercising the option to purchase, but defendants refused to sell the property. The trial court determined that plaintiffs were entitled to specific performance and ordered defendants to execute a land contract containing all "usual and customary covenants," as well as a clause allowing plaintiffs to prepay the balance without penalty. After it was discovered that the property was owned by another person, the trial court ordered defendants to clear title. Eventually, the trial court granted plaintiffs' motion for attorney fees pursuant to ¶ 18 of the lease. In a prior appeal, the court affirmed, but remanded to the trial court to strike a "no prepayment penalty" clause in the land contract. On remand, the trial court granted defendants' motion to amend the land contract in accordance with the court's ruling. Defendants then moved for attorney fees pursuant to ¶ 18 of the lease, arguing that they were the prevailing party because they had successfully appealed the inclusion of the prepayment penalty clause in the land contract. Defendants also argued that because they, rather than plaintiffs, were the prevailing party, the attorney fees previously awarded to plaintiffs should be disallowed. The trial court denied defendants' motion. Contrary to defendants' argument, they were not the prevailing party in the trial court or on the first appeal. In the trial court, defendants argued that the option was void, that plaintiffs had not properly exercised the option, and that any land contract could not contain any terms not expressly included in the option itself. The trial court rejected those arguments and the court affirmed, holding that plaintiffs had properly exercised the option to purchase and that the trial court did not err in requiring execution of a land contract containing terms consistent with the option to purchase and other terms "ordinarily and customarily used in any land contract" other than the prepayment penalty clause. The court also rejected as moot the argument that the option was void, and left the order for attorney fees in effect. The court determined that neither party had prevailed in full on appeal. Thus, the law of the case doctrine precluded the trial court from concluding that defendants were the prevailing party on appeal.

 

Construction Law

 

This summary also appears under Real Property

 

Issues: Whether the trial court properly determined that the test wells installed by Alcock Drilling were not "actual physical improvements" to the property; Dressel v. Ameribank; Wilson v. Alpena Cnty. Rd. Comm'n; Michalski v. Bar-Levav; Bates v. Gilbert; The Construction Lien Act (CLA)(MCL 570.1191 et seq.); "Priority" of construction liens; MCL 570.1119(3); Michigan Pipe & Valve-Lansing, Inc. v. Hebeler Enters., Inc.; "First actual improvement" defined; MCL 570.1103(1)

Court: Michigan Court of Appeals (Unpublished)

Case Name: E.T. Mackenzie Co. v. Sutton Place-Raisin Twp., LLC

e-Journal Number: 50223

Judge(s): Per Curiam – Cavanagh, Wilder, and Owens

 

Holding that the trial court erred when it determined that the test wells that were installed were not "actual physical improvements" to the property, the court held that the trial court erred by granting defendant-United Bank & Trust a first-mortgage lien and priority over plaintiff's construction lien, except for an amount of $43,229.31. The dispute involved real property located in Raisin Township. The property consisted of two parcels, Sutton Place No. 1 and Sutton Place No. 2, which totaled 93 acres. Defendant-Sutton Place-Raisin Twp. wished to purchase the property and develop it into a residential subdivision. Before purchasing the property, Sutton Place had some well testing performed. Alcock Drilling received paperwork from the Lenawee County Health Department for a total of eight wells to be drilled based upon applications made by Sutton Place. Alcock Drilling performed the drilling and testing for the eight wells. The wells were located on eight different lots scattered amongst the 93 acres. When finished, each of the PVC pipes extended approximately five feet above the ground. The work was completed by the end of 8/06. On 9/29/06, Sutton Place granted a mortgage in favor of United Bank for an amount up to $2,000,000. On that same day, Sutton Place purchased the property for $900,000, using proceeds from the United Bank mortgage. On 5/29/07, plaintiff and Sutton Place entered into an agreement, where plaintiff would provide certain services related to the development of the property. This work was to include items such as demolition and removal, clearing and grubbing, soil erosion control, grading, storm sewers, retention basin beds, and on-site road construction. Plaintiff began work on 5/29/07, and concluded on 11/20/07. Sutton Place paid plaintiff $854,951.39 for the work, but plaintiff claimed that it was still owed $325,008.30. As a result, plaintiff recorded a claim of lien for $325,008.30 on 1/7/08, and in 5/08, plaintiff filed suit against Sutton Place. Plaintiff later moved for partial summary disposition as to the issue of priority between its lien and United Bank's mortgage. The trial court found that the mortgage was recorded before the first actual physical improvement because it determined that the Alcock test wells did not meet the statutory definition of an "actual physical improvement." As a result, the trial court found that the mortgage, for the most part, had priority over plaintiff's construction lien. Plaintiff filed its claim of lien under the CLA. "The date of the ‘first actual improvement' is the date that construction liens attach to the property for determining priority among competing liens and encumbrances." United Bank argued that, because the wells were installed for testing purposes only, they did not constitute a "first actual physical improvement." The court recently addressed this precise issue. In Michigan Pipe, a contractor installed a test well in order to obtain a water sample from the aquifer below the subject property. Like the defendant in Michigan Pipe, United Bank maintained that such a test well should fall under the statute's "due diligence" exception to being an "actual physical improvement" because, by its very essence, the well was never intended to be used beyond this initial testing phase. The court rejected this premise. Because the test wells were "readily visible and of a kind that would alert a person upon reasonable inspection of the existence of an improvement," they constituted the "first actual physical improvement," and the trial court erred when it decided otherwise. Since United Bank's mortgage was "recorded subsequent to the first actual physical improvement," plaintiff's construction lien was entitled to priority over the mortgage. Reversed and remanded.

 

Contracts

 

This summary also appears under Real Property

 

Issues: Whether the parties to the prenuptial agreement (PA) intended to hold the condo at issue as a tenancy by the entireties with right of survivorship; Sweebe v. Sweebe; In re Bennett Estate; Shay v. Aldrich; Klapp v. United Ins. Group Agency

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Estate of Timmer

e-Journal Number: 50219

Judge(s): Per Curiam – Servitto, Gleicher, and Shapiro

 

After remand, the court held that the evidence showed the parties to the PA intended at the time they entered into the PA that they would take title to a condo during the marriage, hold it jointly, the survivor would have the opportunity to remain in the condo for his or her life, and the fee would then revert equally to their estates upon both of their deaths. Thus, the court reversed the trial court's ruling that the parties intended to hold the condo as a tenancy by the entireties with right of survivorship and remanded for further proceedings. At issue was the construction of language in the PA between Hermina Timmer and Peter Timmer, entered into when they were married later in their lives and each had children of their own. Their PA contained an ambiguity about the couple's intent as to their decision to jointly purchase a condo after the marriage. The court previously remanded the case to the trial court. Appellants (including the PR of Hermina's estate) renewed their argument that the trial court erred in concluding that Peter and Hermina intended to own the condo with a tenancy by the entireties with right of survivorship. The trial court noted that the deed to the condo appeared to convey a tenancy by the entireties and did not evidence any intent to reserve a life estate or reference the PA. However, the evidence was undisputed that the condo was purchased after the PA was executed and the PA specifically referenced the purchase of a condo and stated - "It is their intent that the condominium be held by them as tenants by the entireties or joint tenants and that the surviving spouse shall have a life estate in said condominium as long as the surviving spouse shall occupy said condominium." Thus, the deed conveying to them as "husband and wife" was not inconsistent with the intent referenced in the PA. The evidence did not support a contrary finding as to the parties' intent at the time they entered into the PA. Although the appellee (Kenneth, Trustee of Peter's trust), provided hearsay testimony that his father later told him he understood that if he died first, Hermina would get the entire property, there was no evidence as to what the parties intended at the time the provision was drafted, and particularly what Hermina believed the provision to mean. "The trial court's finding that, in the absence of any other evidence, Peter's statement to Kenneth constituted evidence of Hermina's intent was clearly erroneous." Also, the trial court's findings made no mention of the testimony of Hermina's son, the PR, that Hermina and Peter each paid for one-half of the condo, that Peter had informed the PR that Hermina owned a one-half interest in the condo, and that Peter had assigned each party a 50% interest on the valuation sheets because Peter believed that they each owned one-half of the property. The PR testified that Hermina had only an eighth-grade education. Contrary to appellee's implication, there was no evidence that she had any familiarity with the transfer of joint property or of running a business other than having had property from her first marriage descend to her as a matter of law when her first husband died. "The expert testified that what the couple was trying to do was to preserve their separate property for the sake of their heirs. The poorly-written and conflicting language of the" PA could not overcome the actual intent of the parties to the contract. Appellants should have received 50% of the value of the condo. The title itself contained no ambiguities, and thus properly passed to Peter's trust. "However, Peter breached the agreement he had with Hermina when he cut off appellants' right to her share of the property."

 

This summary also appears under Attorneys

 

Issues: Whether the defendants were "prevailing parties" entitled to attorney fees under ¶ 18 of the lease agreement; Miranda & Assoc., Inc. v. Abro (Unpub.); Reed v. Reed; Kloian v. Domino's Pizza, LLC; Flint Cold Storage v. Department of Treasury; Holland v. Trinity Health Care Corp.; New Prop., Inc. v. George D Newpower, Jr., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Miranda & Assocs., Inc. v. Abro

e-Journal Number: 50238

Judge(s): Per Curiam – M.J. Kelly, Saad, and O’Connell

 

Based on the law of the case doctrine, the court held that the trial court properly determined that defendants were not prevailing parties entitled to attorney fees under ¶ 18 of the lease agreement, and affirmed the trial court's order denying defendants' motion for attorney fees. Plaintiffs and defendants entered into agreements for the sale of a business and the lease of the property on which the business was located. The lease contained an option to purchase the property for $400,000, with payment of $120,000 down and a land contract for the balance, which was to be paid in 120 monthly installments at 9% interest. Plaintiffs gave defendants notice that they were exercising the option to purchase, but defendants refused to sell the property. The trial court determined that plaintiffs were entitled to specific performance and ordered defendants to execute a land contract containing all "usual and customary covenants," as well as a clause allowing plaintiffs to prepay the balance without penalty. After it was discovered that the property was owned by another person, the trial court ordered defendants to clear title. Eventually, the trial court granted plaintiffs' motion for attorney fees pursuant to ¶ 18 of the lease. In a prior appeal, the court affirmed, but remanded to the trial court to strike a "no prepayment penalty" clause in the land contract. On remand, the trial court granted defendants' motion to amend the land contract in accordance with the court's ruling. Defendants then moved for attorney fees pursuant to ¶ 18 of the lease, arguing that they were the prevailing party because they had successfully appealed the inclusion of the prepayment penalty clause in the land contract. Defendants also argued that because they, rather than plaintiffs, were the prevailing party, the attorney fees previously awarded to plaintiffs should be disallowed. The trial court denied defendants' motion. Contrary to defendants' argument, they were not the prevailing party in the trial court or on the first appeal. In the trial court, defendants argued that the option was void, that plaintiffs had not properly exercised the option, and that any land contract could not contain any terms not expressly included in the option itself. The trial court rejected those arguments and the court affirmed, holding that plaintiffs had properly exercised the option to purchase and that the trial court did not err in requiring execution of a land contract containing terms consistent with the option to purchase and other terms "ordinarily and customarily used in any land contract" other than the prepayment penalty clause. The court also rejected as moot the argument that the option was void, and left the order for attorney fees in effect. The court determined that neither party had prevailed in full on appeal. Thus, the law of the case doctrine precluded the trial court from concluding that defendants were the prevailing party on appeal.

 

This summary also appears under Real Property

 

Issues: Whether the trial court properly determined that the defendant-trust failed to make its scheduled 4/20/06 payment and defaulted on the land contract; Maiden v. Rozwood; Coblentz v. Novi; The "mailbox rule"; Birznieks v. Cooper; A "condition precedent"; Mikonczyk v. Detroit Newspapers, Inc.; Lane v. KinderCare Learning Ctrs., Inc.; Whether the trust had viable claims for fraud based on counter defendant-MacLeod's alleged misrepresentations that lease income from the separate property was $500,000 per year; The "integration clause"; UAW-GM Human Res. Ctr.v. KSL Recreation Corp.; Hamade v. Sunoco Inc.; Whether the trial court properly determined the trust's fraud claims about contamination could not be maintained because of the integration clause; Whether the 5% late charge was reasonable; Moore v. St. Clair Cnty.;  Solomon v. Department of State Hwy. & Transp.; St. Clair Med., PC v. Borgiel

Court: Michigan Court of Appeals (Unpublished)

Case Name: P & R Developers, LLC v. Bosgraaf Trust U/A/D 2/25/88

e-Journal Number: 50344

Judge(s): Per Curiam - Markey, Servitto, and Ronayne Krause

 

The court held, inter alia, that viewing the evidence in a light most favorable to the defendant/counter-plaintiff-trust, there was no genuine issue of material fact that plaintiff-P & R was entitled to judgment as a matter of law on its complaint and on the trust's counterclaim on the issue of breach of contract. In 2003, the parties entered into a land contract for the purchase and sale of land, which contained 8 condo units. The contract provided for the trust to purchase the property for $1,350,000, payable in installments of $150,000 (or more) on 8/20/05, 06, and 07, and a final balloon payment of the balance due on or before 8/20/08. The obligation of the land contract was supported by a guaranty executed by Scott Bosgraaf. Plaintiff filed suit when defendants defaulted on their obligations under the land contract and the guaranty seeking foreclosure and enforcement of the guaranty. The trust filed a counterclaim asserting that a provision of the land contract allowed it to acquire title to specific condo units prior to the total price being paid by making early payment and despite having made such payments, P & R had released title to only a part of the units. The trust also alleged fraudulent inducement, fraudulent, innocent, and negligent misrepresentation, and breach of contract by P & R relating to the land contract as well as a separate real estate agreement entered into between the parties as to a parcel of property the trust purchased from P & R. The trial court granted summary disposition to P & R and the trust appealed. The trust argued on appeal, inter alia, that the trial court erred in finding the trust failed to make its scheduled 8/20/06 payment and defaulted on the land contract. It contended that it sent P & R a check dated 8/15/06 for $150,000 as an early release payment on condo unit 8 and the early release payment it made also served as a regular annual payment for that year. Thus, it argued a regular annual payment was not due on 8/20/06 contrary to the trial court's decision. The court agreed. The court noted that an addendum to the land contract provided the trust had the right to have individual condo units released from the contract under certain terms. The trial court held that pursuant to the mailbox rule the 8/15/06 payment was considered made when it was mailed on 8/15/06, and the trust could declare this to be an "early release" payment. The contract also stated that any early release payment "shall be  . . . be applied to the next unpaid installment due under the Contract." Thus, the trial court erred in concluding that although the early payment was a release payment, the trust had defaulted by not making the regularly scheduled 8/20/06 annual payment. The trust also argued that P & R breached the agreement when it refused to transfer a deed to the trust after receiving the release payment for condo 8. Thus, it contended it was excused in withholding further payments until the breach was cured. The court noted that the trust did not meet all of the conditions necessary for the 8/06 payment to actually be an early release. The trust did not provide the required form of deed or sale contract, thus it did not meet a condition precedent to having unit 8 released. P & R could not have breached the land contract by not providing the deed. The trust was required to pay the outstanding balance on 8/20/08 under the terms of the land contract. Its failure to do so constituted a breach of the land contract. The trial court properly concluded that the trust defaulted by failing to pay the outstanding balance on the due date. Affirmed.

 

Criminal Law

 

Issues: Motion for a directed verdict; Sufficiency of the evidence to prove beyond a reasonable doubt the damage element of MCL 750.356a(3) (breaking and entering a vehicle causing damage); People v. Pitts; People v. Droog; People v. Davis; People v. Morey; Whether the padlock was "any part" of the trailer; "Any" defined; "Part" defined; "Any part" of . . [a] trailer"; Whether the trailer was damaged

Court: Michigan Court of Appeals (Published)

Case Name: People v. Kloosterman

e-Journal Number: 50353

Judge(s): Per Curiam – Markey, Fitzgerald, and Borrello

 

The court held that the trial court did not err when it denied the defendant's motion for a directed verdict because the prosecution offered sufficient evidence to prove beyond a reasonable doubt the damage element of MCL 750.356a(3). MCL 750.356a(3) imposes an enhanced sentence where damage is done to any part of a motor vehicle, house trailer, trailer, or semitrailer in the commission of MCL 750.356a(2)(a) or (b). Defendant did not dispute that a padlock securing the trailer's latches was cut. Rather, he argued the padlock was not "any part" of the trailer and thus, the trailer was not damaged for purposes of MCL 750.356a(3). "Any part of . . . [a] trailer" as used in MCL 750.356a(3) covers every and all portions of the trailer in whatever degree or whatever separate or distinct piece of the trailer that is broken, torn, cut or otherwise damaged. Here, the victim purchased his trailer and the padlocks for his trailer on the same day from the same trailer company. The latches on the trailer were compatible with the padlocks the victim purchased. The padlocks were intended to be purchased with the trailer to lock the trailer. The victim purchased the trailer for the purpose of storing and transporting his tools and used the locks to secure his tools while in the trailer. The padlocks on the victim's trailer were a distinct piece of the trailer that served the trailer's function of transporting and securing tools. Defendant's conviction of breaking and entering a vehicle causing damage and sentence as a second habitual offender to a prison term of one to five years were affirmed.

 

Issues: Whether the defendant's due process rights were violated based on his wearing jail clothing at trial; People v. Harris; Estelle v. Williams; Failure to object; Sentencing; Scoring of OVs 3 and 11; People v. Houston; People v. Grant; People v. Uphaus (On Remand); Whether the new scoring altered the appropriate guidelines range; People v. Francisco; People v. Carines

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hamilton

e-Journal Number: 50332

Judge(s): Per Curiam - Markey and Servitto; Concurrence - Ronayne Krause

 

The court held that nothing in the record warranted a conclusion that defendant was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial, and he was not denied his right to a fair trial based on his clothing. Before defendant testified at trial, the trial court sent the jury outside of the courtroom. Defendant had taken off his sweatshirt and was wearing a T-shirt with the letters "KCCF," an abbreviation for **** County Correctional Facility. The trial court suggested that he wear his sweatshirt. Before the jury returned, he turned his shirt backwards. There was no indication in the record that he ever objected or raised the issue of his trial clothing, or that the jury was aware that "KCCF" indicated jail clothing. Thus, his failure to object was "sufficient to negate the presence of a compulsion necessary to establish a constitutional violation." The court also held that the trial court abused its discretion by scoring OV 3 at 10 points because there was no evidence in the record to support the score. Further, the trial court properly scored OV 11 at 25 points. Although OV 3 was improperly scored, he was not entitled to resentencing because the scoring error did not alter the appropriate guidelines range. Defense counsel was not ineffective for not objecting because the scoring of OV 3 was not prejudicial since it did not affect the appropriate guidelines range. Affirmed.

 

Issues: Prosecutorial misconduct; People v. Cox; People v. Noble; People v. Unger; Plain error; People v. Carines; People v. Watson; People v. Bahoda; People v. Ackerman; People v. Guenther; People v. Guenther; "Aider and abettor"; MCL 767.39; People v. Moore; People v. Robinson; People v. Gayheart; People v. McRunels; People v. DeLisle

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Harrison

e-Journal Number: 50237

Judge(s): Per Curiam – Wilder, Hoekstra, and Borrello

 

Holding that the prosecutor's improper remark did not affect the defendant's substantial rights, the court affirmed his convictions for first-degree premeditated murder and assault with intent to murder. Defendant argued he was denied a fair trial because the prosecutor improperly argued facts not in evidence during closing arguments. Specifically, the prosecutor said - "Ladies and gentlemen, Marcus Harrison is your shooter. He just told you that. I didn't create that, and it's not speculation. It's his testimony." The court found the prosecutor's claim that defendant admitted he was the shooter to be unsupported by the record. Defendant did not testify at trial. Because a prosecutor may not argue facts that are not in evidence, the court found defendant demonstrated that plain error occurred when the prosecutor indicated that defendant "just told" the jury he was that shooter, and that it was "his testimony." Despite demonstrating plain error, the court held that defendant could not show he was prejudiced by the error. First, the jury instructions cured any error stemming from the improper comment. The trial court instructed the jury that "lawyers' statements and arguments are not evidence. They are only meant to help you understand the evidence and each side's legal theories." Defendant could not show he was prejudiced because the trial court read the curative instruction that the lawyers' arguments are not evidence and "[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements." "[J]urors are presumed to follow their instructions." The court held that the trial court's instruction "that arguments of attorneys are not evidence" dispelled any possible prejudice. Further, the court did not view a prosecutor's comments in isolation, but must examine them in context. Evaluating the lone improper comment in context, the court found that defendant was not denied a fair trial. The evidence admitted clearly demonstrated defendant was an aider and abettor, not the shooter. The evidence presented at trial showed that he aided the shooter, who defendant knew had a gun, in finding the intended victim, L, and in the commission of the crimes. The intent to kill may be inferred from the use of a dangerous weapon, such as a gun. Further, defendant admitted to police he knew what was going to happen. Defendant and codefendant T discussed the plan to find L and harm him before the shooting and defendant helped T hunt L down. These actions demonstrated premeditation. Even if he only believed T planned to physically assault L, defendant was charged with knowledge that the criminal enterprise may result in murder because "a natural and probable consequence of a plan to assault someone is that one of the actors may well escalate the assault into a murder." As to the second victim, M, T's intent to kill L transferred to M. In light of the evidence admitted against defendant during trial, he failed to establish that the prosecutor's improper comments were prejudicial, and thus, failed to demonstrate that the plain error affected his substantial rights.

 

Issues: Whether the defendant's conviction of possession with intent to deliver less than five kilograms of marijuana was against the great weight of the evidence; MCR 2.611(A)(1)(e); MCR 6.431(B); People v. Lemmon; People v. Crawford; "Possession"

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Moore

e-Journal Number: 50220

Judge(s): Per Curiam – Murphy, Beckering, and Ronayne Krause

 

Holding that the evidence of the defendant's possession of the bag of marijuana did not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand, the court affirmed his conviction of possession with intent to deliver less than five kilograms of marijuana. It was undisputed that the bag of marijuana was found at the scene, it was tested and confirmed to be marijuana, and it weighed less than five kilograms. Defendant only challenged the possession element, claiming that the marijuana police found while executing the search warrant did not belong to him and was not on his person. The evidence showed that he was at B's home on the date police raided it. Officer S was conducting preraid surveillance on the home and saw another man (E) come from the back of the house to meet a woman on the sidewalk. E took money from her and handed her a small item from his front right pocket. About five minutes later S saw defendant come out to meet a man on the sidewalk. "The man gave defendant money and defendant walked back to the garage for a moment before returning with a small item, which he handed to the man." S believed these transactions were drug sales and he called in the search warrant execution team, giving them descriptions of E and defendant. The warrant team (including Officer K) ran onto the property a minute or two later. As K ran onto the property, he saw defendant holding a gallon-sized bag of marijuana. K headed toward him. Defendant ran, but fell as he turned the corner around the side of the garage. K took the bag containing the marijuana out of defendant's hands. No money was found on him. Ten "Ziploc" bags of marijuana were found in E's front right pocket and he had $844 on his person. Defendant claimed that he could not have been the man S saw making what he believed was a drug transaction because the man accepted money from the other party and defendant did not have any money on him when he was arrested. However, the court noted that S's "observation of defendant was not continuous between the transaction and the time of arrest." As to K's testimony, defendant pointed out that the other three officers who testified did not see the bag of marijuana in his hands when they arrived on the scene. He claimed that this fact preponderated heavily against the verdict. However, the court concluded that the relevant testimony indicated that while "the other officers did not specifically see the bag in defendant's hands, their attention was drawn elsewhere in the rush of events." None of them testified that he was definitively not holding anything, only that they did not notice him holding anything. "This illusory contradiction does not raise an issue of serious impeachment or inherent implausibility of the type warranting a new trial" as to K's testimony. Further, the bag of marijuana was recovered from the scene, corroborating K's testimony and heavily weighing in favor of defendant's guilt.

 

Issues: Sufficiency of the evidence to support the defendant's conviction of resisting and obstructing a police officer (MCL 750.81d(1)); People v. Corr; People v. Phelps; People v. Railer; "Person" (MCL 750.81d(7)(b)(i)); Prosecutorial misconduct; People v. Mann; People v. Bahoda; People v. Stanaway; People v. Mesik (On Reconsideration); People v. Fields; Plain error review; People v. Brown; People v. Ackerman

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Zaborski

e-Journal Number: 50254

Judge(s): Per Curiam – Servitto, Cavanagh, and Stephens

 

Concluding that a rational trier of fact could find that the defendant knew at least one police officer was involved and the officer was performing his official duties, the court held that sufficient evidence supported his conviction of resisting and obstructing a police officer. Officer P testified that while in full uniform he responded to a report of a fight in progress at an apartment complex in his fully marked police car. He heard a heated argument occurring inside and entered the apartment building. P "saw defendant, who was standing in the threshold of an apartment, forcefully push with both of his hands a female who was standing directly in front of him in the doorway." P ran the 12 to 15 feet between himself and defendant, grabbed and then pulled defendant away from the female victim, and pushed him face-first against the opposite wall. P felt defendant tense up, saw his jaws clench, and saw him make a fist. P told defendant not to fight him and that he was a police officer. Defendant did not respond. P then told him several times to drop the coat that was clenched in his fist, and defendant did not do so. P tried to pull defendant's arm behind his back and he began to forcibly pull his arm away from P. Another officer (S) arrived and began to assist P in an effort to get defendant to comply with his verbal directions. Defendant refused to comply with their directions to place his hands behind his back and drop the coat. "After several forcible and failed attempts," P was able to physically pull one of defendant's arms behind his back and apply a handcuff. However, rather than place his other arm behind his back, defendant instead placed it between his body and the wall so that the officers could not grab it. P pulled him to the ground. When defendant landed, he put both of his arms under his body as he was face-down on the ground. P and S both told defendant to stop resisting and put his hands behind his back, but he did not comply. A third officer later arrived and warned defendant that a taser was going to be applied if he did not comply. Defendant did not respond and the taser was applied. After two more taser applications, S "was able to forcibly pull defendant's arm out from under his body and place it behind his back for handcuffing." P testified that after defendant was taken to the police station, he continued to refuse to obey commands. Affirmed.

 

Employment & Labor Law

 

Issues: Wrongful discharge; Motion for judgment as a matter of law; Lulaj v. Wackenhut Corp.; Potti v. Duramed Pharms., Inc.; Wilkinson v. Lee; Whether the plaintiff was required to prove to the jury that defendant directed her to violate the law; "At-will" employee; Sucholdoski v. Michigan Consol. Gas Co.; Humenny v. Genex Corp.; Pratt v. Brown Mach. Co.; Whether the district court properly refused to give defendant's requested jury instruction requiring plaintiff to show that defendant directed her to violate the law; United States v. Roth; Tuttle v. Metropolitan Gov't of Nashville; Whether plaintiff presented sufficient evidence to prove that the cause of her termination was her refusal to violate the law; Silberstein v. Pro-Golf of Am., Inc.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Morrison v. B. Braun Med., Inc.

e-Journal Number: 50340

Judge(s): Martin, Griffin, and Anderson

 

Noting that no Michigan court has defined the wrongful discharge in violation of public policy cause of action to require a plaintiff to show that the employer directed him or her to violate the law, the court agreed with the district court that a wrongful discharge claim does not depend upon a showing of a directive or request by the employer. The court held, inter alia, that the district court did not err in denying the defendant's renewed motion for judgment as a matter of law as to its claim that plaintiff, an at-will employee, failed to prove that defendant directed her to violate the law. Plaintiff was terminated from her job as a medical sales representative by defendant. Plaintiff alleged that defendant wrongfully discharged her in violation of Michigan's public policy because of her refusal to unlawfully promote non-approved uses of medical products and to violate anti-kickback laws. The case was tried to a jury. The district court denied a motion by defendant for judgment as a matter of law, and the jury returned a verdict for plaintiff. Defendant filed a renewed motion for judgment as a matter of law, which the district court also denied. Defendant appealed, arguing that the district court erred by not requiring plaintiff to prove to the jury that defendant directed her to violate the law and in finding that plaintiff presented sufficient evidence to prove that the cause of her termination was her refusal to violate the law. Defendant argued that a claim of wrongful discharge requires proof of an employer directive to violate the law. The court held that defendant's proposed definition of wrongful discharge in violation of public policy was an inaccurate statement of the law. "Courts applying Michigan law have consistently defined the wrongful discharge tort at issue here as an employer's termination of an employee because of the employee's ‘failure or refusal to violate a law in the course of employment.'" Defendant pointed to the decision in Pratt, where the court found that a plaintiff's evidence of his refusal to comply with his employer's request that he drop a criminal investigation was "sufficient" to prove that he refused to violate the law. The court concluded that the language in Pratt did not establish the existence of an additional element of the wrongful discharge tort, but instead reflected that the plaintiff in Pratt presented evidence of his employer's request that he violate the law in order to prove his own refusal to do so. The court also held that plaintiff presented sufficient evidence for a reasonable juror to conclude that one of the reasons that made a difference in defendant's decision to fire her "was her refusal or failure to violate the law. Such a conclusion is sufficient to establish a claim of wrongful discharge as a matter of law." Affirmed.

 

Family Law

 

This summary also appears under Litigation

 

Issues: The plaintiff-wife's appeal of the of the "Opinion and Order Denying in Part and Granting in Part Plaintiff's Motion for Reconsideration" awarding $10,044.25 in sanctions on appellant-Allyn (plaintiff's attorney) and plaintiff jointly and severally; MCR 2.114 and MCL 600.2591; FMB-First MI Bank v. Bailey; MCR 2.625(A)(2); "Frivolous claims"; In re Costs & Attorney Fees; United Kingdom (UK)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Desai v. Desai

e-Journal Number: 50347

Judge(s): Per Curiam - Talbot, Fitzgerald, and Markey

 

Since at a minimum, the plaintiff-wife and her attorney (appellant) were aware of the UK proceedings and reasonable inquiry into the state of those proceedings would have revealed that a divorce decree had already been issued by the UK court, the court held that the trial court did not clearly err in determining that sanctions were warranted under MCR 2.114 and MCL 600.2591. Further, given the itemized billing statement, the undisputed hourly rates, and the trial court's finding, the court found no abuse of discretion that defendant-husband reasonably incurred costs and expenses in the amount of $10,044.25 for defending this frivolous action. Plaintiff's divorce complaint was filed in the trial court on 4/19/10. On $/21/10 she obtained ex parte orders for parenting time and a restraining order as to the disposition of assets. However, defendant had filed for divorce in the UK, where the parties previously lived, on 2/15/09, and was awarded custody of their two children by order of the UK court on 6/10/09. An interim divorce was entered in the UK, which became absolute within six weeks. The complaint filed in the trial court was clearly frivolous because divorce proceedings had already taken place in the UK. The court noted that it was incumbent on plaintiff to verify the status of the UK proceedings before filing the complaint. Thus, the trial court did not err in determining that sanctions were warranted. Plaintiff did not dispute the reasonableness or the hourly rate of legal fees, rather she argued that defendant should have advised her of the resolution of the UK divorce and should have filed a motion to dismiss, rather then taking plaintiff's deposition and then filing a motion to dismiss. The court concluded that the record supported the trial court's finding that the attorney fees and costs incurred by defendant were reasonable. On 5/21/10, the trial court dismissed the divorce case in its entirety for lack of jurisdiction. Affirmed.

 

Insurance

 

Issues: Coverage under a homeowner's policy; Applicability of an "animal exclusion" provision; Insurance contract interpretation; Klapp v. United Ins. Group Agency; Century Sur. Co. v. Charron; Whether the exclusion required that a landlord have actual knowledge a tenant was retaining animals on the property; Moore v. First Sec. Cas. Co.; Applicability of the doctrine of ejusdem generis; Neal v. Wilkes; Whether the exclusion should be construed as void because it was repugnant to public policy; Rory v. Continental Ins. Co.; Terrien v. Zwit; Effect of a lease provision permitting a right of inspection; Slatterly v. Madiol; Whether summary disposition was inappropriate due to the need for further discovery; Issue raised for the first time in a reply brief; Blazer Foods, Inc. v. Restaurant Props., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nolan v. Auto-Owners Ins. Co.

e-Journal Number: 50255

Judge(s): Per Curiam – Talbot, Fitzgerald, and Meter

 

Concluding, inter alia, that knowledge was not a prerequisite of the actual language of the insurance policy contract, the court affirmed the trial court's order granting the defendant-insurer summary disposition in this dispute as to coverage under a homeowner's insurance policy. The plaintiff-insured purchased homeowner's insurance from defendant for a rental property. He leased the property and later discovered that his tenants had moved out but continued to use the home to house at least 18 animals, primarily dogs. "The animals had urinated and defecated throughout the home, resulting in considerable damage." Plaintiff filed a property loss notice with defendant seeking coverage under the policy. Defendant sent him correspondence indicating that his policy precluded coverage based on an animal exclusion provision. Plaintiff sued. The trial court ruled for defendant based on the exclusionary policy language relating to animals. The policy provided that it did "not cover loss resulting directly or indirectly from . . . wear and tear, marring, scratching or deterioration . . . animals owned or kept by an insured or tenant[.]" Plaintiff argued on appeal, inter alia, that the animal exclusion provision required a landlord have actual knowledge that a tenant was retaining animals on the property. He contended that he was unaware the tenants kept animals at the house, contrary to their lease, and that the exclusion was unenforceable. The court concluded that while plaintiff argued that the term "kept" necessarily implies knowledge, this interpretation was "strained. While a definition of ‘kept' implies possession, it does not necessarily infer knowledge as the language of the exclusion encompasses ‘animals owned or kept by any insured or tenant.'" Plaintiff also argued that the exclusion did not apply because the property damage was attributable to the tenants' failure "to clean up the animal urine and feces over an extended period of time rather than the actual voiding by the animals in the residence." However, the court held that this argument was "insupportable based on the language of the exclusion," which precluded a claim for loss resulting "directly or indirectly" from "animals owned or kept by any insured or tenant."

 

Litigation

 

This summary also appears under Family Law

 

Issues: The plaintiff-wife's appeal of the of the "Opinion and Order Denying in Part and Granting in Part Plaintiff's Motion for Reconsideration" awarding $10,044.25 in sanctions on appellant-Allyn (plaintiff's attorney) and plaintiff jointly and severally; MCR 2.114 and MCL 600.2591; FMB-First MI Bank v. Bailey; MCR 2.625(A)(2); "Frivolous claims"; In re Costs & Attorney Fees; United Kingdom (UK)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Desai v. Desai

e-Journal Number: 50347

Judge(s): Per Curiam - Talbot, Fitzgerald, and Markey

 

Since at a minimum, the plaintiff-wife and her attorney (appellant) were aware of the UK proceedings and reasonable inquiry into the state of those proceedings would have revealed that a divorce decree had already been issued by the UK court, the court held that the trial court did not clearly err in determining that sanctions were warranted under MCR 2.114 and MCL 600.2591. Further, given the itemized billing statement, the undisputed hourly rates, and the trial court's finding, the court found no abuse of discretion that defendant-husband reasonably incurred costs and expenses in the amount of $10,044.25 for defending this frivolous action. Plaintiff's divorce complaint was filed in the trial court on 4/19/10. On $/21/10 she obtained ex parte orders for parenting time and a restraining order as to the disposition of assets. However, defendant had filed for divorce in the UK, where the parties previously lived, on 2/15/09, and was awarded custody of their two children by order of the UK court on 6/10/09. An interim divorce was entered in the UK, which became absolute within six weeks. The complaint filed in the trial court was clearly frivolous because divorce proceedings had already taken place in the UK. The court noted that it was incumbent on plaintiff to verify the status of the UK proceedings before filing the complaint. Thus, the trial court did not err in determining that sanctions were warranted. Plaintiff did not dispute the reasonableness or the hourly rate of legal fees, rather she argued that defendant should have advised her of the resolution of the UK divorce and should have filed a motion to dismiss, rather then taking plaintiff's deposition and then filing a motion to dismiss. The court concluded that the record supported the trial court's finding that the attorney fees and costs incurred by defendant were reasonable. On 5/21/10, the trial court dismissed the divorce case in its entirety for lack of jurisdiction. Affirmed.

 

This summary also appears under Malpractice

 

Issues: Medical malpractice; Whether the trial court properly denied the defendants' motion for partial summary disposition; Maiden v. Rozwood; Craig v. Oakwood Hosp.; MCL 600.2912a(2); Decker v. Rochowiak; Teal v. Prasad; Plaintiff's claims as to the exteriorizing of the "Becker port" and failure to more quickly remove the Becker implant; Claim as to the lack of informed consent for the fat injection procedure; Waiver of issue; In re Keifer; MCR 2.111(B)(1)

Court: Michigan Court of Appeals (Unpublished)

Case Name: McConiha v. Smith

e-Journal Number: 50289

Judge(s): Per Curiam - Shapiro, Saad, and Beckering

 

The court held, inter alia, that the trial court erred by denying the defendants' motion for partial summary disposition as to the plaintiff's allegations of malpractice occurring before 10/11/05, the 23 broadly-stated allegations of malpractice in her complaint that lacked expert support, and her allegations related to a lack of informed consent for the fat injection procedure. Genuine issues of material fact existed as to her claims concerning the exteriorization of the Becker port and failure to more quickly remove the Becker implant, and the trial court properly denied defendants' motion as to those claims. Plaintiff's claim that defendant-Smith improperly placed the implant at the time of the 7/06 surgery also remained a matter for jury determination. Plaintiff began treating with Smith, a plastic and reconstructive surgeon, on 5/26/04. According to the complaint, Smith diagnosed her with mammary hypoplasia and recommended bilateral augmentation mammoplasty. He did the surgery on 7/26/04. At the follow-up visit, he noted that there was a displacement of the right infra-mammary crease and applied Elastoplast tape to the area. Plaintiff underwent a second surgery on 3/4/05. Smith repositioned the right implant and increased the volume bilaterally. Then, "additional complications arose including the appearance of the right implant being higher than the left implant and the development of some abnormality, described variously in the records." An abscess also developed. On 4/12/05, Smith performed an incision and debridement in his office and prescribed an antibiotic for an infection in the breast. Because the infection persisted, Smith conducted surgery on 5/9/05, removing the right implant. After several follow-up visits and various "post-operative difficulties" plaintiff underwent another surgery. Smith placed a Becker implant in the right breast on 9/16/05. After the surgery, plaintiff again "developed complications including what appeared to be a discoloration on an area of the breast, erythema, and infection." On 9/22/05, she was admitted to the hospital for treatment with IV antibiotics. Smith tried to treat the infection "by opening an incision site near or about the Becker port, and by attempting to aspirate through the body of the breast." The parties agreed that on 10/11/05, Smith exteriorized the Becker port to allow for drainage. On 11/28/05, he conducted surgery to remove the right implant. Plaintiff recovered well after the removal and they agreed to wait several months before placing another implant. On 5/19/06, Smith decided it would be better to do a "fat injection," rather than install a new implant. Plaintiff signed a consent form authorizing Smith to inject fat into the right breast. She underwent another surgery of 7/14/06, where Smith placed a new implant in her right breast. Her last visit to Smith was on 7/18/06. Photographs after the final surgery showed significant "migration" of the right implant. Later, plaintiff saw another plastic surgeon. On 3/18/09, she was seen by Dr. I, a plastic and reconstructive surgeon. He performed corrective surgery on 4/14/09. According to plaintiff's expert, W, the surgery was "partially successful," meaning the appearance of the breast was improved and plaintiff was happier. But there was still a depression and some unevenness. Dr. W suggested further corrections for the appearance of the breast. She sued defendants on 9/18/07 alleging medical negligence. The court noted that plaintiff did not provide expert testimony for her allegations of malpractice pre-10/11/05 and some of her other claims lacked expert support, and held, inter alia, that the trial court should have granted defendants' motion as to those claims. Thus, the court affirmed in part, reversed in part, and remanded.  

 

Malpractice

 

This summary also appears under Litigation

 

Issues: Medical malpractice; Whether the trial court properly denied the defendants' motion for partial summary disposition; Maiden v. Rozwood; Craig v. Oakwood Hosp.; MCL 600.2912a(2); Decker v. Rochowiak; Teal v. Prasad; Plaintiff's claims as to the exteriorizing of the "Becker port" and failure to more quickly remove the Becker implant; Claim as to the lack of informed consent for the fat injection procedure; Waiver of issue; In re Keifer; MCR 2.111(B)(1)

Court: Michigan Court of Appeals (Unpublished)

Case Name: McConiha v. Smith

e-Journal Number: 50289

Judge(s): Per Curiam - Shapiro, Saad, and Beckering

 

The court held, inter alia, that the trial court erred by denying the defendants' motion for partial summary disposition as to the plaintiff's allegations of malpractice occurring before 10/11/05, the 23 broadly-stated allegations of malpractice in her complaint that lacked expert support, and her allegations related to a lack of informed consent for the fat injection procedure. Genuine issues of material fact existed as to her claims concerning the exteriorization of the Becker port and failure to more quickly remove the Becker implant, and the trial court properly denied defendants' motion as to those claims. Plaintiff's claim that defendant-Smith improperly placed the implant at the time of the 7/06 surgery also remained a matter for jury determination. Plaintiff began treating with Smith, a plastic and reconstructive surgeon, on 5/26/04. According to the complaint, Smith diagnosed her with mammary hypoplasia and recommended bilateral augmentation mammoplasty. He did the surgery on 7/26/04. At the follow-up visit, he noted that there was a displacement of the right infra-mammary crease and applied Elastoplast tape to the area. Plaintiff underwent a second surgery on 3/4/05. Smith repositioned the right implant and increased the volume bilaterally. Then, "additional complications arose including the appearance of the right implant being higher than the left implant and the development of some abnormality, described variously in the records." An abscess also developed. On 4/12/05, Smith performed an incision and debridement in his office and prescribed an antibiotic for an infection in the breast. Because the infection persisted, Smith conducted surgery on 5/9/05, removing the right implant. After several follow-up visits and various "post-operative difficulties" plaintiff underwent another surgery. Smith placed a Becker implant in the right breast on 9/16/05. After the surgery, plaintiff again "developed complications including what appeared to be a discoloration on an area of the breast, erythema, and infection." On 9/22/05, she was admitted to the hospital for treatment with IV antibiotics. Smith tried to treat the infection "by opening an incision site near or about the Becker port, and by attempting to aspirate through the body of the breast." The parties agreed that on 10/11/05, Smith exteriorized the Becker port to allow for drainage. On 11/28/05, he conducted surgery to remove the right implant. Plaintiff recovered well after the removal and they agreed to wait several months before placing another implant. On 5/19/06, Smith decided it would be better to do a "fat injection," rather than install a new implant. Plaintiff signed a consent form authorizing Smith to inject fat into the right breast. She underwent another surgery of 7/14/06, where Smith placed a new implant in her right breast. Her last visit to Smith was on 7/18/06. Photographs after the final surgery showed significant "migration" of the right implant. Later, plaintiff saw another plastic surgeon. On 3/18/09, she was seen by Dr. I, a plastic and reconstructive surgeon. He performed corrective surgery on 4/14/09. According to plaintiff's expert, W, the surgery was "partially successful," meaning the appearance of the breast was improved and plaintiff was happier. But there was still a depression and some unevenness. Dr. W suggested further corrections for the appearance of the breast. She sued defendants on 9/18/07 alleging medical negligence. The court noted that plaintiff did not provide expert testimony for her allegations of malpractice pre-10/11/05 and some of her other claims lacked expert support, and held, inter alia, that the trial court should have granted defendants' motion as to those claims. Thus, the court affirmed in part, reversed in part, and remanded.  

 

Real Property

 

This summary also appears under Construction Law

 

Issues: Whether the trial court properly determined that the test wells installed by Alcock Drilling were not "actual physical improvements" to the property; Dressel v. Ameribank; Wilson v. Alpena Cnty. Rd. Comm'n; Michalski v. Bar-Levav; Bates v. Gilbert; The Construction Lien Act (CLA)(MCL 570.1191 et seq.); "Priority" of construction liens; MCL 570.1119(3); Michigan Pipe & Valve-Lansing, Inc. v. Hebeler Enters., Inc.; "First actual improvement" defined; MCL 570.1103(1)

Court: Michigan Court of Appeals (Unpublished)

Case Name: E.T. Mackenzie Co. v. Sutton Place-Raisin Twp., LLC

e-Journal Number: 50223

Judge(s): Per Curiam – Cavanagh, Wilder, and Owens

 

Holding that the trial court erred when it determined that the test wells that were installed were not "actual physical improvements" to the property, the court held that the trial court erred by granting defendant-United Bank & Trust a first-mortgage lien and priority over plaintiff's construction lien, except for an amount of $43,229.31. The dispute involved real property located in Raisin Township. The property consisted of two parcels, Sutton Place No. 1 and Sutton Place No. 2, which totaled 93 acres. Defendant-Sutton Place-Raisin Twp. wished to purchase the property and develop it into a residential subdivision. Before purchasing the property, Sutton Place had some well testing performed. Alcock Drilling received paperwork from the Lenawee County Health Department for a total of eight wells to be drilled based upon applications made by Sutton Place. Alcock Drilling performed the drilling and testing for the eight wells. The wells were located on eight different lots scattered amongst the 93 acres. When finished, each of the PVC pipes extended approximately five feet above the ground. The work was completed by the end of 8/06. On 9/29/06, Sutton Place granted a mortgage in favor of United Bank for an amount up to $2,000,000. On that same day, Sutton Place purchased the property for $900,000, using proceeds from the United Bank mortgage. On 5/29/07, plaintiff and Sutton Place entered into an agreement, where plaintiff would provide certain services related to the development of the property. This work was to include items such as demolition and removal, clearing and grubbing, soil erosion control, grading, storm sewers, retention basin beds, and on-site road construction. Plaintiff began work on 5/29/07, and concluded on 11/20/07. Sutton Place paid plaintiff $854,951.39 for the work, but plaintiff claimed that it was still owed $325,008.30. As a result, plaintiff recorded a claim of lien for $325,008.30 on 1/7/08, and in 5/08, plaintiff filed suit against Sutton Place. Plaintiff later moved for partial summary disposition as to the issue of priority between its lien and United Bank's mortgage. The trial court found that the mortgage was recorded before the first actual physical improvement because it determined that the Alcock test wells did not meet the statutory definition of an "actual physical improvement." As a result, the trial court found that the mortgage, for the most part, had priority over plaintiff's construction lien. Plaintiff filed its claim of lien under the CLA. "The date of the ‘first actual improvement' is the date that construction liens attach to the property for determining priority among competing liens and encumbrances." United Bank argued that, because the wells were installed for testing purposes only, they did not constitute a "first actual physical improvement." The court recently addressed this precise issue. In Michigan Pipe, a contractor installed a test well in order to obtain a water sample from the aquifer below the subject property. Like the defendant in Michigan Pipe, United Bank maintained that such a test well should fall under the statute's "due diligence" exception to being an "actual physical improvement" because, by its very essence, the well was never intended to be used beyond this initial testing phase. The court rejected this premise. Because the test wells were "readily visible and of a kind that would alert a person upon reasonable inspection of the existence of an improvement," they constituted the "first actual physical improvement," and the trial court erred when it decided otherwise. Since United Bank's mortgage was "recorded subsequent to the first actual physical improvement," plaintiff's construction lien was entitled to priority over the mortgage. Reversed and remanded.

 

This summary also appears under Contracts

 

Issues: Whether the parties to the prenuptial agreement (PA) intended to hold the condo at issue as a tenancy by the entireties with right of survivorship; Sweebe v. Sweebe; In re Bennett Estate; Shay v. Aldrich; Klapp v. United Ins. Group Agency

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Estate of Timmer

e-Journal Number: 50219

Judge(s): Per Curiam – Servitto, Gleicher, and Shapiro

 

After remand, the court held that the evidence showed the parties to the PA intended at the time they entered into the PA that they would take title to a condo during the marriage, hold it jointly, the survivor would have the opportunity to remain in the condo for his or her life, and the fee would then revert equally to their estates upon both of their deaths. Thus, the court reversed the trial court's ruling that the parties intended to hold the condo as a tenancy by the entireties with right of survivorship and remanded for further proceedings. At issue was the construction of language in the PA between Hermina Timmer and Peter Timmer, entered into when they were married later in their lives and each had children of their own. Their PA contained an ambiguity about the couple's intent as to their decision to jointly purchase a condo after the marriage. The court previously remanded the case to the trial court. Appellants (including the PR of Hermina's estate) renewed their argument that the trial court erred in concluding that Peter and Hermina intended to own the condo with a tenancy by the entireties with right of survivorship. The trial court noted that the deed to the condo appeared to convey a tenancy by the entireties and did not evidence any intent to reserve a life estate or reference the PA. However, the evidence was undisputed that the condo was purchased after the PA was executed and the PA specifically referenced the purchase of a condo and stated - "It is their intent that the condominium be held by them as tenants by the entireties or joint tenants and that the surviving spouse shall have a life estate in said condominium as long as the surviving spouse shall occupy said condominium." Thus, the deed conveying to them as "husband and wife" was not inconsistent with the intent referenced in the PA. The evidence did not support a contrary finding as to the parties' intent at the time they entered into the PA. Although the appellee (Kenneth, Trustee of Peter's trust), provided hearsay testimony that his father later told him he understood that if he died first, Hermina would get the entire property, there was no evidence as to what the parties intended at the time the provision was drafted, and particularly what Hermina believed the provision to mean. "The trial court's finding that, in the absence of any other evidence, Peter's statement to Kenneth constituted evidence of Hermina's intent was clearly erroneous." Also, the trial court's findings made no mention of the testimony of Hermina's son, the PR, that Hermina and Peter each paid for one-half of the condo, that Peter had informed the PR that Hermina owned a one-half interest in the condo, and that Peter had assigned each party a 50% interest on the valuation sheets because Peter believed that they each owned one-half of the property. The PR testified that Hermina had only an eighth-grade education. Contrary to appellee's implication, there was no evidence that she had any familiarity with the transfer of joint property or of running a business other than having had property from her first marriage descend to her as a matter of law when her first husband died. "The expert testified that what the couple was trying to do was to preserve their separate property for the sake of their heirs. The poorly-written and conflicting language of the" PA could not overcome the actual intent of the parties to the contract. Appellants should have received 50% of the value of the condo. The title itself contained no ambiguities, and thus properly passed to Peter's trust. "However, Peter breached the agreement he had with Hermina when he cut off appellants' right to her share of the property."

 

This summary also appears under Contracts

 

Issues: Whether the trial court properly determined that the defendant-trust failed to make its scheduled 4/20/06 payment and defaulted on the land contract; Maiden v. Rozwood; Coblentz v. Novi; The "mailbox rule"; Birznieks v. Cooper; A "condition precedent"; Mikonczyk v. Detroit Newspapers, Inc.; Lane v. KinderCare Learning Ctrs., Inc.; Whether the trust had viable claims for fraud based on counter defendant-MacLeod's alleged misrepresentations that lease income from the separate property was $500,000 per year; The "integration clause"; UAW-GM Human Res. Ctr.v. KSL Recreation Corp.; Hamade v. Sunoco Inc.; Whether the trial court properly determined the trust's fraud claims about contamination could not be maintained because of the integration clause; Whether the 5% late charge was reasonable; Moore v. St. Clair Cnty.;  Solomon v. Department of State Hwy. & Transp.; St. Clair Med., PC v. Borgiel

Court: Michigan Court of Appeals (Unpublished)

Case Name: P & R Developers, LLC v. Bosgraaf Trust U/A/D 2/25/88

e-Journal Number: 50344

Judge(s): Per Curiam - Markey, Servitto, and Ronayne Krause

 

The court held, inter alia, that viewing the evidence in a light most favorable to the defendant/counter-plaintiff-trust, there was no genuine issue of material fact that plaintiff-P & R was entitled to judgment as a matter of law on its complaint and on the trust's counterclaim on the issue of breach of contract. In 2003, the parties entered into a land contract for the purchase and sale of land, which contained 8 condo units. The contract provided for the trust to purchase the property for $1,350,000, payable in installments of $150,000 (or more) on 8/20/05, 06, and 07, and a final balloon payment of the balance due on or before 8/20/08. The obligation of the land contract was supported by a guaranty executed by Scott Bosgraaf. Plaintiff filed suit when defendants defaulted on their obligations under the land contract and the guaranty seeking foreclosure and enforcement of the guaranty. The trust filed a counterclaim asserting that a provision of the land contract allowed it to acquire title to specific condo units prior to the total price being paid by making early payment and despite having made such payments, P & R had released title to only a part of the units. The trust also alleged fraudulent inducement, fraudulent, innocent, and negligent misrepresentation, and breach of contract by P & R relating to the land contract as well as a separate real estate agreement entered into between the parties as to a parcel of property the trust purchased from P & R. The trial court granted summary disposition to P & R and the trust appealed. The trust argued on appeal, inter alia, that the trial court erred in finding the trust failed to make its scheduled 8/20/06 payment and defaulted on the land contract. It contended that it sent P & R a check dated 8/15/06 for $150,000 as an early release payment on condo unit 8 and the early release payment it made also served as a regular annual payment for that year. Thus, it argued a regular annual payment was not due on 8/20/06 contrary to the trial court's decision. The court agreed. The court noted that an addendum to the land contract provided the trust had the right to have individual condo units released from the contract under certain terms. The trial court held that pursuant to the mailbox rule the 8/15/06 payment was considered made when it was mailed on 8/15/06, and the trust could declare this to be an "early release" payment. The contract also stated that any early release payment "shall be  . . . be applied to the next unpaid installment due under the Contract." Thus, the trial court erred in concluding that although the early payment was a release payment, the trust had defaulted by not making the regularly scheduled 8/20/06 annual payment. The trust also argued that P & R breached the agreement when it refused to transfer a deed to the trust after receiving the release payment for condo 8. Thus, it contended it was excused in withholding further payments until the breach was cured. The court noted that the trust did not meet all of the conditions necessary for the 8/06 payment to actually be an early release. The trust did not provide the required form of deed or sale contract, thus it did not meet a condition precedent to having unit 8 released. P & R could not have breached the land contract by not providing the deed. The trust was required to pay the outstanding balance on 8/20/08 under the terms of the land contract. Its failure to do so constituted a breach of the land contract. The trial court properly concluded that the trust defaulted by failing to pay the outstanding balance on the due date. Affirmed.

 

Tax

 

Issues: Claim property was exempt under MCL 211.7p ("the memorial home exemption"); The General Property Tax Act (MCL 211.1 et seq.); American Legion Mem'l Home Ass'n of Grand Rapids v. City of Grand Rapids; Whether the tax tribunal hearing referee considered the articles of incorporation of a different legal entity in deciding the petitioner's claim; Review of Michigan Tax Tribunal decisions; Meadowlanes Ltd. Dividend Hous. Ass'n v. City of Holland; Georgetown Place Coop. v. City of Taylor; Dow Chem. Co. v. Department of Treasury; Burden of proving the right to a tax exemption; Elias Bros. Rests., Inc. v. Treasury Dep't; Michigan Baptist Homes & Dev. Co. v. Ann Arbor; Whether remand was necessary; Hicks v. Department of Commerce

Court: Michigan Court of Appeals (Unpublished)

Case Name: American Legion Post 267 v. Township of Lyon

e-Journal Number: 50257

Judge(s): Per Curiam – Talbot, Fitzgerald, and Markey

 

Since the hearing referee clearly erred in considering the articles of incorporation of a different entity as evidence of the petitioner's articles of incorporation, the court held that the hearing referee's decision denying petitioner's claim of exemption was not based on competent, material, and substantial evidence. Remand was necessary to allow the Tax Tribunal to develop the record and, if applicable, reconsider the case using petitioner's articles of incorporation. Petitioner owns a cabin located on leased land near a lake. It received notice from the respondent-township's board of review indicating that the board made an adjustment to petitioner's ad valorem property tax assessment for 2007. Petitioner appealed to the tribunal, which affirmed the denial of petitioner's claim of exemption under MCL 211.7p. The hearing referee found that the cabin was used solely as a vacation property for select weeks during the year. The hearing referee also concluded that petitioner failed to meet the burden of proof required for the exemption, determining that the cabin was "‘not primarily utilized for business purposes to carry out the functions of the organization. Rather, the use is strictly social.'" The hearing referee distinguished American Legion on the basis that the building in that case was "‘used for business meetings, ceremonies, and other services,'" and its social use was only incidental and not the primary use of the building. The court noted that it established a four-element test in American Legion that must be met to qualify for the memorial home exemption. The hearing referee's decision was based on the fourth element - whether the cabin was used for the purposes for which petitioner was incorporated. Petitioner filed exceptions to the Proposed Opinion and Judgment asserting, in part, that the hearing referee did not rely on the correct articles of incorporation. The tribunal concluded that the issues raised in the exceptions were considered in rendering the Proposed Opinion and Judgment or lacked any merit. However, the "hearing referee clearly relied on the articles of incorporation of an entirely different entity in deciding petitioner's claim. The hearing referee cited the articles of incorporation of the American Legion Memorial Home Association of Grand Rapids as cited in American Legion . . . ." In light of the record presented, the court was unable to resolve the case. While it appeared petitioner provided its articles of incorporation to the tribunal, the record was less than clear as to when petitioner did so. Reversed and remanded.

 

Workers' Compensation

 

Issues: Whether the WCAC properly directed the defendant-Second Injury Fund (SIF) to reimburse the defendant-Township on the basis of the uncoordinated amount that the Township voluntarily paid; Rahman v. Detroit Bd. of Educ.; Romero v. Burt Moeke Hardwoods, Inc.; McCaul v. Modern Tile & Carpet; "Dual employment" provision of the WDCA; MCL 418.372(1); § 372(1)(b); MCL 418.354(1); "Benefits due"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Smitter v. Thornapple Twp. of Barry Cnty.

e-Journal Number: 50218

Judge(s): Per Curiam – Talbot, Fitzgerald, and Markey

 

On remand from the Supreme Court, the court affirmed the WCAC's decision, which affirmed a magistrate's decision holding that the defendant-SIF may not reduce its reimbursement to the defendant-Township (employer) to reflect the Township's unexercised right to coordinate benefits. The court held that Rahman supported the WCAC's conclusion, and there was no principled reason for distinguishing it. Plaintiff was employed full-time by GM and part-time as a Township firefighter. He was injured while working as a firefighter for the Township and temporarily unable to work at either job. The Township paid weekly wage-loss benefits to plaintiff at the maximum rate. Plaintiff also received benefits from a "sickness and accident" policy purchased by the Township. The Township did not reduce its payment of worker's compensation benefits to plaintiff pursuant to MCL 418.354(1). The Township deliberately chose not to coordinate the benefits for its own policy reasons. After paying the weekly wage-loss benefits to plaintiff, the Township sought reimbursement from the SIF pursuant to the procedure in MCL 418.372(1)(b). The SIF agreed to pay an amount it contended it would have owed if the Township had coordinated the sickness and accident benefits and thus reduced the weekly benefit that was apportioned between the Township and the SIF. The Township filed a petition to recoup the benefits it claimed the SIF owed. Relying on Rahman, the magistrate rejected the SIF's argument as to coordination and granted the Township's petition. The WCAC unanimously affirmed the magistrate's decision. The SIF argued on appeal that the WCAC erred in directing the SIF to reimburse the Township on the basis of the uncoordinated amount that the Township voluntarily paid. The "dual employment" provision of the WDCA governs the payment of weekly wage-loss benefits to an employee with dual employers. When the employee is injured while performing a job that pays 80% or less of his total average weekly wage, § 372(1)(b) provides a formula and procedure for the payment of the weekly wage benefits. The WDCA's provision governing the coordination of benefits was implicated in this case because of the benefits that plaintiff received from a "sickness and accident" policy the Township purchased. The SIF maintained that "the apportionment of liability in § 372(1)(b) should occur after the employee's weekly benefit amount is reduced through the coordination of benefits pursuant to § 354(1)." The court held that position was not consistent with Rahman, in which the SIF argued "that the amount it is required to reimburse the board [the injury-employer] should be calculated after plaintiff's pension is deducted from the total amount of weekly benefits due to the plaintiff on the basis of his employment with the board and the city." In rejecting that argument, the court focused on the plain language of § 354(1). While the SIF argued that Rahman was wrongly decided, the court was bound to follow that decision. Further, the court concluded that Rahman is consistent with the statutory language, and the SIF's position is not. The SIF argued that Rahman is distinguishable because it concerned coordination of a different type of benefit - pension benefits rather than benefits from a disability insurance policy. "But, both types of benefits are governed by § 354(1), and the statute does not provide any reason to treat these benefits differently." Affirmed.

 

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